1. What’s the matter? The new law entered into force setting the provisions for conducting experiment on the use of documents relating to labour in the electronic form without their duplication in hard copy. 2. Who is affected? All employers willing to take part in the experiment and employees, who provided consent to participate in the experiment. 3. How does this experiment work? Employers taking part in the experiment define the list of all personnel documents that will be maintained in the electronic form. Documents that require signature can be maintained through a corporate information network with the use of a qualified electronic signature of the employer and employee or through the system “Work in Russia” with the use of the qualified electronic signature of employer and basic electronic signature of employee. 4. What are the advantages and disadvantages of the experiment for an employer? On the one hand, electronic personnel documentation is more convenient for an employer since it reduces time and material costs of documentation maintenance. On the other hand, employer shall bear additional risks because it is generally more difficult to ensure confidentiality of information that is maintained in electronic form. Moreover, the employer shall bear all costs related with obtaining electronic signature for the employee.
Employees temporarily working for other natural or legal persons under secondment contracts or remote employees cannot take part in the experiment. The experiment will be conducted until March 31, 2021, the employer independently determines the date of the experiment upon his discretion. Experiment under the Law is one of the stages of documents management digitalization in the companies. The Ministry of labour previously conducted similar experiments. For instance, in 2018 the Ministry of labour adopted Order[1] setting up schedule of events, list of participants of experiment and types of documents (for each participant individually) subject to experiment (administration of leaves and business trips, entering into employment contracts, familiarization with local internal regulations). As a result, the Ministry of labour identified the following shortcomings of the experiment:
¾ absence of unified legislative requirements to the universal enhanced electronic signature;
¾ high cost of obtaining and use of electronic signature;
¾ high risks of holding employers liable during court proceedings or audits of regulatory bodies due to the loss of information in the electronic format, software errors during information transmission and processing;
¾ difficulties with protection of employee’s rights due to the loss of information in employer’s corporate information network when documentation is maintained in electronic form only.
Russian tripartite committee on regulation of social and labour relations expressed an opinion that maintenance of all documents of organizations in the electronic form is inappropriate[2]. The conducted experiment revealed, that neither business, nor state was ready for digitalization of all personnel documentation. Therefore, selective measures were taken, in particular, law was adopted on electronic employment record books covering only the procedure of maintaining information on labor activity in the electronic form[3]: ¾ employees with employment record books file written application to the employer on maintenance of employment record book in hard copy until December 31, 2020 or maintenance of information on employee’s labour activity in electronic form; ¾ as for persons are employed for the first time after December 31, 2020, information on their labor activity is maintained only electronically, employment record books are not processed. The new experiment on electronic maintenance of personnel documentation under the Law is a preparatory stage before introduction of electronic personnel documentation management. In order to take part in the experiment the employer shall:
adopt a list of types of personnel documents which the experiment will affect;
define subdivisions of a company that are taking part in the experiment if necessary;
notify each employee on the experiment a well as on his right to refuse or agree to take part in the experiment in writing not later than a month before the experiment commencement (employee is entitled to refuse to take part in the experiment at any time notifying the employer in writing 2 weeks in advance);
compile and adopt a list of employees;
include amendments related to the experiment in local internal acts taking into account the opinion of elected body of primary labour organization (if any), including local internal act on the use of electronic signature by employer and employee, as well as in local internal act which lays down the procedure for processing electronic documents related to labour and containing employees’ personal data;
ensure that employees are familiarized with and acknowledge their understanding by signing local internal acts related to the experiment (employer shall familiarize persons being recruited during the experiment with relevant local acts at the stage of their recruitment);
where necessary prepare and discuss amendments to collective agreements with authorized representatives of employees;
establish corporate information network or ensure use of current information network for the purposes of conducting the experiment or ensure interaction of employer’s information network with the network “Work in Russia”. An employer uses enhanced qualified signature for creation and processing of electronic documents whereas an employee uses either enhanced qualified signature if corporate information network is used or basic electronic signature when network “Work in Russia” is used.
However, by May 29, 2020 the Ministry of labour has not established the procedure for filing of application to take part in the experiment, such procedure will presumably be governed by a separate regulatory act in the near future. The employer shall take on several responsibilities because of his participation in the experiment, including:
protection of employees’ personal data and other information, including protection of electronic documents related to labour from any illegal acts;
storage of electronic documents related to labour within the time-frames established in the legislation on archive activities;
provision of electronic documents related to labour process at the request of authorized bodies and organizations, as well as labour unions;
provision of electronic documents related to labour to an employee within 3 working days upon filing his application in the manner stipulated in the application;
provision of a copy of an order for termination of an employment contract in the manner stipulated by the employee’s application;
meeting costs due to the creation, use and storage of electronic documents used in the labour process, including costs for obtaining and use of employee’s electronic signature.
The conduction of the experiment under the Law will allow to make new conclusions on the introduction of electronic personnel documentation management in Russia. The above experiment is more likely to be successful since certain drawbacks of the 2018 experiment such as, for example, mandatory use of enhanced qualified electronic signature by employer and employee, were taken into account. Moreover, it will be easier for organizations taking part in the experiment to adapt to new amendments in connection with digitalization of personnel documents.
[1] Order of the Ministry of Labour № 194 dated March 26, 2018 “On conducting experiment on digitalization of documents and information about an employee on issues concerning labour relations” [2] Information of the Ministry of labor dated October 19, 2018 Comment of the Ministry of labour on introduction of electronic employment record book and electronic personnel documentation [3] Federal law № 439-FZ dated December 16, 2019 “On introduction of amendments to Labour code of the Russian Federation concerning completion of information on labor activity in electronic form”